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Karen and Robert Capato were married in August 1999, but the honeymoon ended quickly as Robert was diagnosed with esophageal cancer. Before starting chemo which might render him sterile, he had his sperm frozen. He died in March 2002. Karen used his sperm to conceive a child in January 2003, and in September 2003—18 months after Robert Capato’s death—she gave birth to twins.  

The Social Security Act of 1939 allows for survivor benefits for "the child or legally adopted child of an [insured] individual," and so Karen applied for Social Security survivor benefits for the twins. The United States Court of Appeals for the Third Circuit agreed with her application, holding: "What is before us is a discrete set of circumstances and the narrow question posed by those circumstances: are the undisputed biological children of a deceased wage earner and his widow 'children' within the meaning of the Act? The answer is a resounding 'Yes.'"

The Social Security Administration appealed, and today the Supreme Court of the United States resoundingly said 'No.'" Or, at least, "Look, it's a close call, and the SSA is entitled to the benefit of the doubt." Why? According to Justice Ginsburg, writing for a unanimous Court, a definition which states that a "child" is "the child or legally adopted child of an [insured] individual" is too circular to provide guidance. Instead, she writes, you have to look at other portions of the Act, and the SSA's own regulations interpreting it.

Below the orange gnocchi, I'll explain why, and what lawyers mean when we talk about Chevron.

Those SSA regulations define a "natural child" as someone who meets one of the following criteria: (1) the applicant “could inherit the insured’s personal property as his or her natural child under State inheritance laws”; (2) the applicant is “the insured’s natural child and [his or her parents] went through a ceremony which would have resulted in a valid marriage between them except for a legal impediment”; (3) before death, the insured acknowledged in writing his or her parentage of the applicant, was decreed by a court to be the applicant’s parent, or was ordered by a court to contribute to the applicant’s support; or (4) other evidence shows that the insured is the applicant’s “natural father or mother” and was either living with, or contributing to the support of, the applicant.

And since Robert didn't include "and any future IVF children" in his will, the Court holds, you have to look at the state law provisions on intestacy (i.e., "who does the estate go to if there's no will?"), as well as other Congressional statutes dealing with parentage and benefits:

As the SSA points out, “[i]n 1939, there was no such thing as a scientifically proven biological relationship between a child and a father, which is . . .part of the reason that the word ‘biological’ appears nowhere in the Act.” Notably, a biological parent is not necessarily a child’s parent under law. Ordinarily, “a parent-child relationship does not exist between an adoptee and the adoptee’s genetic parents.” Moreover, laws directly addressing use of today’s assisted reproduction technology do not make biological parentage a universally determinative criterion. See, e.g., Cal. Fam. Code Ann. §7613(b) (West Supp. 2012) (“The donor of semen . . . for use in artificial insemination or in vitro fertilization of a woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.”); Mass. Gen.Laws, ch. 46, §4B (West 2010) (“Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.”). We note, in addition, that marriage does not ever and always make the parentage of a child certain, nor does the absence of marriage necessarily mean that a child’s parentage is uncertain. An unmarried couple can agree that a child is theirs, while the parentage of a child born during a marriage may be uncertain.

Finally, it is far from obvious that Karen Capato’s proposed definition—“biological child of married parents"—would cover the posthumously conceived Capato twins. Under Florida law, a marriage ends upon the death of a spouse. If that law applies, rather than a court-declared preemptive federal law, the Capato twins, conceived after the death of their father, would not qualify as “marital” children.

Moreover, the Court reasons, it's consistent with the Act's purpose to look only at children alive during the father's lifetime:
The paths to receipt of benefits laid out in the Act and regulations, we must not forget, proceed from Congress’ perception of the core purpose of the legislation. The aim was not to create a program “generally benefiting needy persons”; it was, more particularly, to “provide . . . dependent members of [a wage earner’s] family with protection against the hardship occasioned by [the] loss of [the insured’s] earnings.” We have recognized that “where state intestacy law provides that a child may take personal property froma father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life and at his death.” Reliance on state intestacy law to determine whois a “child” thus serves the Act’s driving objective.
Which leads us to Chevron. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc (1984) is the case that makes the modern administrative state possible. What Chevron says is this: When it appears that Congress delegated authority to some executive branch agency to interpret and apply some law—whether due to a deliberate punt or some statutory gap—then as long as the agency's interpretation is a reasonable one, courts shouldn't worry about whether it's the right one, and instead defer to the agency's policymaking expertise:
Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices -- resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges -- who have no constituency -- have a duty to respect legitimate policy choices made by those who do.

And that's what ends this case:
Chevron deference is appropriate “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Here, as already noted, the SSA’s longstanding interpretation is set forth in regulations published after notice-and-comment rulemaking. Congress gave the Commissioner authority to promulgate rules “necessary or appropriate to carry out” the Commissioner’s functions and the relevant statutory provisions. The Commissioner’s regulations are neither “arbitrary or capricious in substance, [n]or manifestly contrary to the statute.” They thus warrant the Court’s approbation.

Tragic circumstances—Robert Capato’s death before he and his wife could raise a family—gave rise to this case. But the law Congress enacted calls for resolution of Karen Capato’s application for child’s insurance benefits by reference to state intestacy law. We cannot replace that reference by creating a uniform federal rule the statute’s text scarcely supports.

This is a statutory question; if Congress wants to amend the statute to include such children within the benefits of the Act, it can.

SCOTUSblog, as always, has briefs and argument recap.

Originally posted to Adam B on Mon May 21, 2012 at 09:05 AM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  What's left this Term (61+ / 0-)

    Here's a list.  Includes:

    Whether the Federal Communications Commission's current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.
    Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.
    Whether the Stolen Valor Act, 18 U.S.C. § 704(b), which makes it a crime to falsely represent that you have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, is facially invalid under the Free Speech Clause of the First Amendment.   
  •  This all sounds eminently reasonable (11+ / 0-)

    Besides the Chevron thing, which would seem to clinch it in any close-call on the substance, the reference to the Act's purpose (i.e. not a general benefits program) sounds compelling to me.

    One more thing- If it's true that had she waited, say, 15 years after his death she would have a less compelling case, and I think that would be true, then it's not a strongly compelling case waiting 9 months after his death.  

    Romney '12: The Power of Crass Commands You!

    by Rich in PA on Mon May 21, 2012 at 09:36:36 AM PDT

    •  You Try It (0+ / 0-)

      Yeah, she should have gotten the grieving over with, and gotten pregnant while his grave was still fresh.

      He paid SS premiums his whole life, on the condition it would care for his children if his income ceased too early to care for them himself. The government should keep all that profit when he died early, despite his taking all the medical measures he could to ensure they got his benefits.

      In fact, if you're ever fired from a job, you shouldn't receive your SS pension when you finally retire. You blew it!

      Just count yourself lucky you could contribute your share to the job creators, all blessings upon them.

      "When the going gets weird, the weird turn pro." - HST

      by DocGonzo on Tue May 22, 2012 at 04:54:03 AM PDT

      [ Parent ]

      •  This gets pretty slippery (1+ / 0-)
        Recommended by:

        how about two in vitro children?  Ten?   By a different mother after fifty years?   Survivor benefits for all?

        We are the principled ones, remember? We don't get to use the black hats' tricks even when it would benefit us. Political Compass: -6.88, -6.41

        by bmcphail on Tue May 22, 2012 at 08:37:22 AM PDT

        [ Parent ]

        •  How About Those Cases? (0+ / 0-)

          How about the Court finds that this case is not different from natural conception in any of those ways?

          How about the Court take one of those cases, if and when they occur, and exercise some of the wisdom that supposedly earned them all this power?

          "When the going gets weird, the weird turn pro." - HST

          by DocGonzo on Tue May 22, 2012 at 08:32:24 PM PDT

          [ Parent ]

      •  But he didn't have children when he died (0+ / 0-)

        That's the sticking point.  He paid his premiums with one of the aspects being that his benefits could pass to his children upon his death.

        But he didn't have any children when he died.  It is not a trivial question to determine if those benefits should then be passed on to children who may arise after his death.

        With regard to your first statement, she should have gotten pregnant before he died if there was an issue of providing the children with SSI benefits.  They knew there was an issue since they had his sperm frozen.  Why did they wait?

        Part of the process of having a child is determining when to have them and how to take care of them.  I can fully understand the desire to wait to have children given the fact that the father is going through a medical crisis.  There's enough stress in the family.

        But that does mean if you are going to wait, then certain options available to you for raising them may no longer be available.  There does seem to be a very reasonable justification to say that SSI benefits should not accrue to children born after the death of the parent in such cases where a long time has passed.  If that is, indeed, the case, then the argument then becomes one of where to draw the line.  Exactly how long after death can one wait in order to conceive and still maintain benefits?

        Much as I sympathize with Ms. Capato over the death of her husband, I think the line really is to be drawn at death.  Suppose this were a question of his will and estate:  His effects are parceled out to his children and everything is settled...when someone appears who was conceived after that time.  Do they then get a claim on the estate?  Do the beneficiaries then need to refund part of their claims back so that the new child can be included?  Or do we note that because the new child literally did not exist at the time of the death of the parent, there is no claim?  I think it would be manifestly unfair to try and undo what has been done.  After all, what if one of the beneficiaries had died?  Do we then contest that estate, too?

        So it would seem that the SSA is doing the practical, pragmatic thing as well as the right thing by saying that benefits don't go to children who did not exist at the time of death.

  •  I feel sorry for her -- obviously she wanted (12+ / 0-)

    the children of her husband. At first I was outraged, but reading your explanation leaves me a bit less angry.
    My guess is that this will lead to a big change in the way wills are written.
    Question -- if a man dies when his wife is pregnant but doesn't yet know she's pregnant (so there is nothing in the will about a future child), would the same ruling apply?
    Similarly -- if Karen Capato had gotten pregnant before her husband's death?

    We're not perfect, but they're nuts! -- Barney Frank

    by Tamar on Mon May 21, 2012 at 09:41:13 AM PDT

    •  I don't know that this has any relation... (4+ / 0-)
      Recommended by:
      Wee Mama, Aunt Pat, Kevvboy, Lujane the way wills are written—insofar as I don't think (and correct me if I'm wrong) that Social Security survivor benefits are transferrable in wills.

      "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

      by JamesGG on Mon May 21, 2012 at 10:21:59 AM PDT

      [ Parent ]

    •  I don't believe the same result would apply if a (5+ / 0-)

      woman was pregnant at the time her husband died.  If the purpose of the act is to provide for dependants, the unborn child would have been dependent on him had he lived.  There's no way to argue that a child who was not conceived when the man died would have been dependent on him.  

      "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

      by gustynpip on Mon May 21, 2012 at 07:09:18 PM PDT

      [ Parent ]

      •  State intestacy laws provide for children (3+ / 0-)
        Recommended by:
        Lujane, BigOkie, HeyMikey

        Who are conceived before their father's death, so they'd be eligible for benefits.

      •  Really difficult issue (0+ / 0-)

        I worked on a case like this (not involving IVF) and if the father "acknowledges" in some concrete way that the child is his then even a child born out of wedlock after the father dies could qualify for benefits.  This strikes me as the correct result on the facts, particularly given the fact that IVF did not exist at the time the original legislative standards were adopted.  It's not necessarily the case that the father in this case would have wanted his wife to proceed with IVF in his absence.  But it's a tough result (so was the case I worked on).

    •  "outraged" -- strong emotion is a poor basis (1+ / 0-)
      Recommended by:

      for evaluating the law.

    •  Something similar happened to me. My (2+ / 0-)
      Recommended by:
      Lujane, BigOkie

      mother was an only child and her father, my grandfather, left a will when he died that left my grandmother the family home and other items, and he left my mother X amount of money and his will then stated that X amount of money was to be split between all his living grandchildren, or if there were no grandchildren then that amount of money was to go back to my grandmother's portion and was for her use only.  

      My mother was married and was pregnant with me at the time but she had not told anyone at that point....she was only 3 months along.  After the will was read, she told her mom and the attorney that she was indeed pregnant but it was determined that the will meant living grandchildren and not an unborn grandchild. So my grandmother retained the money and it basically was never talked about again within the family.  

  •  How do Social Security survivor benefits... (6+ / 0-) when a man leaves behind a pregnant widow?

    Are the yet-unborn children she's carrying entitled to survivor benefits?

    "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

    by JamesGG on Mon May 21, 2012 at 10:19:37 AM PDT

  •  ultimately Congress needs to address it (7+ / 0-)

    but a child that can be born  years after someone's death through artificial means, really isn't  a child in so many ways, and would definitely fit outside what was Congress' intent when such procedures were unheard of.

    Given surrogates and other technological advances, someone could be producing new children for years after a parents death.   I am not sure I would even want congress to include children conceived out of the time of the marriage.  That sounds like a single parenting decision, not a marital decision.  Closer question if previous attempt  during marriage had failed and the second try was very soon thereafter.

    •  Playing Devil's advocate here: How do we know that (2+ / 0-)
      Recommended by:
      Aunt Pat, wsexson

      it was "outside Congress' intent when such procedures were unheard of"?

      I'm not saying it wasn't, merely that we can't know.

      We don't want our country back, we want our country FORWARD. --Eclectablog

      by Samer on Mon May 21, 2012 at 01:20:07 PM PDT

      [ Parent ]

    •  The father's intent to preserve his sperm (2+ / 0-)
      Recommended by:
      Mr Robert, Tamar

      for the purpose of fathering a natural child proves otherwise.

      Especially since he would have been sterilized by medical procedures due to illness.

      I can only imagine how this would play out for Veterans.

      I wonder how many have their eggs and sperm frozen, or will in the future, with the intent of leaving their spouses or families a means of carrying on the family name in the face of the ultimate sacrifice of health or life?

      Or anyone in job that puts their lives in harms way on a regular basis, as well as those facing illness that requires treatment that may leave their gametes damaged beyond use [meaning no offspring or worse, defective offspring].

      •  Sorry, but wanting to "carry on the family name" (6+ / 0-)

        is really not a good reason to leave  sperm with the intent that it be used to create a human being for whom you'll be unable to provide care of any kind.  Ego should not be part of such a decision.  Whether it's by a veteran or otherwise.

        "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

        by gustynpip on Mon May 21, 2012 at 07:18:21 PM PDT

        [ Parent ]

        •  I think GM is making a case here ... (0+ / 0-)

          but it seems it is up to each state legislature to organize and rationalize the rules for paternity and inheritance within its borders, as each determination necessarily excludes all others, no?

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Mon May 21, 2012 at 07:27:50 PM PDT

          [ Parent ]

        •  Whoa, not a good reason? (0+ / 0-)

          Talk about irrelevant to the question of inheritance / dependence.  
          How many kids are born as a result of short-sighted thinking, or lack of thinking altogether, or ignorance of safe preventative measures, or -why not- conceived naturally to 'carry on the family name'?  These kids all lack legal standing due to the reason they were brought into the world?

          And what exactly qualifies as a good reason and what doesn't?  Suppose people who don't particularly like those who have your beliefs are in charge of deciding what's not a good reason.  Maybe it turns out your kids aren't entitled to your benefits because you didn't have them for a 'good reason'.

          Ironic that you should speak with such disdain about those motivated by Ego while moralizing with such a broad brush.

          If you want a discussion, please stick to arguing the point. If you wanted something else...please exit the vehicle.

          by robizio on Mon May 21, 2012 at 09:51:49 PM PDT

          [ Parent ]

          •  So because people make foolish decisions for (0+ / 0-)

            foolish reasons, all selfish decisions must now be accepted without judgement?  Sorry, but I'll continue to hold disdain for anyone who would place carrying on a fricking name above concern for a child for whom that person can provide no protection, no direction, no care, no support.  Let what happens happen to the child as long as a fricking name is carried on.  Disdain is about all I'd feel for someone like that.

            The issue of whether a child qualifies for social security has nothing at all to do with the reason a person decides to have a child.

            In the present case, we have no way of knowing the reason.  We certainly have no reason to believe it was merely to carry on a name.

            My response was to someone talking about that supposedly being the reason veterans are supposedly having their sperm frozen in droves before going to war.  I doubt the number of men doing that is nearly as high as suggested.  I then doubt that the reason those who are doing it is to carry on their name.  But for the rare man who is truly that egotistical, I'll retain my disdain.

            "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

            by gustynpip on Tue May 22, 2012 at 06:23:30 AM PDT

            [ Parent ]

        •  Sperm-freezing for sterility, maybe not death. (1+ / 0-)
          Recommended by:
          Adam B

          As I understand it, when the husband froze his sperm, he pretty much knew the treatments would render him sterile. But he didn't know the cancer would kill him. So maybe he was thinking he'd survive to raise any children conceived with the frozen sperm.

          At any rate, Adam B is right--to run an operation as large as the US government, Congress can't micromanage everything. As a practical matter, it must leave a lot of details for administrative agencies to figure out. And that means the courts are right to have a rule like "Chevron deference"--unless the administrative agency's rule clearly violates the statute passed by Congress, the agency gets to make the call.

          For an example of the Supremes finding that SSA's rule violated the statute, see the 1990 Zebley case.

          FWIW, I'm a lawyer, and I litigate against SSA all the time in disability cases. It's astounding how often SSA simply doesn't follow its own disability rules, then argues its violation of its own rules doesn't really matter. Very often I'm the one arguing the court should give "Chevron deference" to the rule as written...which means the court has to order SSA to follow the rule, which it doesn't want to do.

          Reminds me very much of that scene from "A Man for All Seasons" in which Sir Thomas More is arguing with (IIRC) his son-in-law about whether it's OK to ignore laws for important enough ends.

          "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

          by HeyMikey on Tue May 22, 2012 at 07:41:23 PM PDT

          [ Parent ]

      •  Then thier genetic line gets to continue... (1+ / 0-)
        Recommended by:

        but with the understanding that it would be without the government being obliged to provide benefits.

  •  Just for the sake of argument, where would you (4+ / 0-)
    Recommended by:
    Sychotic1, marykk, Aunt Pat, tardis10

    draw the (time)line? What if she had waited five years? Ten years?

  •  Theres some dark humor happening (8+ / 0-)

    when the same court can say that Corporations are people but a child is not a child.

    War crimes will be prosecuted. War criminals will be punished. And it will be no defense to say, "I was just following orders." G.W Bush

    by LieparDestin on Mon May 21, 2012 at 06:41:07 PM PDT

  •  Good old Chevron deference (0+ / 0-)

    If you practice for government clients, Chevron is your Big Stick. Can be used for many ends, both good and ill. Ironically, the original Chevron opinion dismissed an environmental lawsuit by a private plaintiff group; yet EPA and state environmental agencies frequently use it to enforce environmental regulations.

    With a gridlocked congress, I guess "political question" doesn't have the same ring to it, but that's one thing that isn't the justices' fault.

  •  So if a woman in Florida, where marriage (1+ / 0-)
    Recommended by:

    ends at death, is artificially inseminated with her husband's consent while he's alive, but then he dies before the baby is born, the baby doesn't inherit?

    "Gussie, a glutton for punishment, stared at himself in the mirror."

    by GussieFN on Mon May 21, 2012 at 06:45:11 PM PDT

    •  The child was conceived during the marriage and (3+ / 0-)

      therefore the child inherits.

      The difference here is so basic, I'm not getting how people are grasping that difference.  

      Child conceived during life - legally the man's child.
      Child conceived after death - not legally the man's child.

      "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

      by gustynpip on Mon May 21, 2012 at 07:24:14 PM PDT

      [ Parent ]

      •  Perhaps thinking about what would happen if (3+ / 0-)

        this was not the case would make it make more sense.

        If a child who was conceived after a person's death is going to be entitled to inherit from the father's estate, imagine that a woman decides to have the child five years after the man died.  The man's estate will have been distributed long since.  Can you even begin to imagine the disaster that would occur?  Everyone that inherited money before the child was conceived would suddenly not be entitled to it.  Are they going to have to pay it all over to the child?  What if they don't have it anymore?  What if they've decided to have children because they could afford it after they inherited the money - and now they have the kids, but don't have the money?  

        There have to be certain lines drawn, regardless of whether those lines always end up being fair to everyone.  There has to be a degree of certainty for everyone.  That certainly sometimes has an unfair result to certain people, but the lack of certainty would create a disaster for society in general.

        "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

        by gustynpip on Mon May 21, 2012 at 07:29:25 PM PDT

        [ Parent ]

      •  That's not what the law says. (0+ / 0-)

        The law says, "“Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.”

        That's why I asked.

        Does that clarify?

        "Gussie, a glutton for punishment, stared at himself in the mirror."

        by GussieFN on Mon May 21, 2012 at 08:56:14 PM PDT

        [ Parent ]

  •  This is a slippery slope (7+ / 0-)

    On the one hand, we want to say that a child born through "in vitro" months after one of the parents has passed away should be no different than a child born to two living parents and on the other hand we consider a fetus in the womb not a living, viable human being.

    Although I am pro-choice, I can see this argument being made.  It's a slippery slope.

  •  Legal Mumbo Jumbo (5+ / 0-)

    It's just an excuse to withold support from the children of a dead American Citizen.


    The fact that he purposefully froze his sperm with the knowledge that he would not be able to father "Natural" children after Chemo shows intent to father "natural" children with his legal Spouse.

    The children have his DNA, and there is a paper trail in the medical records that show the sperm belonged to him and was used to impregnate his wife.

    The denial of service is pure unadulterated bureaucratic bullshit.

    Another facet of the Welfare Queen Mythos no doubt, in some office out there.

    •  I agree (0+ / 0-)

      Who is the father of these twins? The deceased Father!

      Those SSA regulations define a "natural child" as someone who meets one of the following criteria:

      (2) the applicant is “the insured’s natural child and [his or her parents] went through a ceremony which would have resulted in a valid marriage between them except for a legal impediment”. They were married.

      (4) other evidence shows that the insured is the applicant’s “natural father or mother” and was either living with, or contributing to the support of, the applicant. Wouldn't his survivor SS benefits for his spouse be contributing to the twins.

      Think Supreme's blew this one!

      •  At the time he died she wasn't the mother... (0+ / 0-)

        of the children. When the fertilized eggs implanted, she became the mother but she was no longer living with the father. It has definate lines outside of the wording of the regulations.

      •  who is the father of a lesbian's child? (1+ / 0-)
        Recommended by:

        Who is the father of a single woman who conceives with a stranger's sperm?

        It is pretty obvious that not every child needs to have a father.  It was solely her decision to have the child.  His wishes were no more relevant to the decision than if her parents[or even his] had told her they wanted grandchildren.  If she had decided not to be inseminated with his sperm would anyone call her a horrible person?  The very thought is absurd.  DNA isn't what makes someone a parent.  Love is.

      •  Those don't mean what you think they do (0+ / 0-)

        They're about the circumstances in which the SSA will find a man to be the parent of a child. The parents were married, so the first is the right one to apply. Two doesn't apply because it addresses to the case where a man "marries" a woman, but it turns out his divorce to his first wife was never finalized. Four is based on the premise that if a man is supporting kids, it is because the are in fact his. Here neither applies, because the father was in fact married to the mother, never supported the children during his lifetime, and there was no question about paternity.

    •  I agree as well (1+ / 0-)
      Recommended by:
      George Hier

      I'm not a lawyer, but I've worked with a few of them. They seem to live and die by precedent even when precedent flies in the face of facts and logic. As the years pass with precedent after precedent, building one upon the other, it becomes a giant pile of bullshit.

      The legal system needs a reboot, much as a computer where bad programming has corrupted what is in memory and is displaying gibberish on the screen.

    •  What's shameful is your intellectual dishonesty. (1+ / 0-)
      Recommended by:

      There is no support whatsoever for your assertions of motive, and many good people, here, and elsewhere, think the court decided rightly while clearly not acting on the motives you ascribe. Your blanket enmity toward bureaucrats is causing you to write some very stupid things.

  •  In an unrelated SCOTUS matter (5+ / 0-)

    Today SCOTUS ruled that it will hear an appeal from the Obama administration to throw out a FISA case due to a claimed lack of standing by plaintiffs, after having standing upheld by an appeals court:

    Originally published May 21, 2012 at 7:05 AM
    Page modified May 21, 2012 at 2:57 PM

    Supreme Court will take up FISA wiretaps lawsuit

    Associated Press


    The Supreme Court says it will consider shutting down a legal challenge to a law that lets the United States eavesdrop on overseas communications.

    A federal appeals court ruled last year that a lawsuit filed by lawyers, journalists and human rights groups objecting to the latest version of the Foreign Intelligence Surveillance Act could proceed. But the Obama administration appealed, and the justices said Monday they will take up the case in the fall.

    The lawsuit was brought by those in jobs that require them to speak with people overseas who are possible targets of the surveillance.

    No court has ruled on the merits of the lawsuit. The current legal fight is over whether the law's challengers are entitled to make their case in federal court.

    The administration says the lawsuit should be dismissed because the plaintiffs only have a fear of having their communications intercepted - as opposed to citing specific instances - which the administration says is insufficient for asking federal judges to intervene. The law's challengers, however, argue that they already have taken costly and burdensome steps to protect the confidentiality of their overseas communications, based on a reasonable belief that the government could be monitoring their calls.

    In yet another, this time similar but also unrelated case, a district court judge ruled last week that the provision of the NDAA that allows the executive to indefinitely detain people it suspects of being or helping terrorists was unconstitutional, and granted standing to plaintiffs to sue on that basis.

    A lot of interesting developments in the courts this year on multiple fronts.

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Mon May 21, 2012 at 06:51:40 PM PDT

  •  This works for me. (8+ / 0-)

    Don't really want sperm defined as a child.

  •  There's a whole world of child-support rulings (5+ / 0-)

    LATimes did a series on this last year, including a case of a man who is required to provide child support to a child born during his marriage but proven to be the biological child of the man now married to his ex-wife ... the same man who is now cashing the child-support payments ...

    Am I right, or am I right? - The Singing Detective

    by Clem Yeobright on Mon May 21, 2012 at 06:58:40 PM PDT

    •  wow. I know a similar situation but with the (3+ / 0-)

      opposite feel to it.
      a man who fought for post-divorce visitation rights with his 7 year-old child -- the child he thought was his biological child throughout his marriage until his wife left him and told him that the biological father was this other guy who she was now going to marry.
      He won visitation rights which I heartily approve of -- he loved the kid and was his father, whether it was biological or not.

      We're not perfect, but they're nuts! -- Barney Frank

      by Tamar on Mon May 21, 2012 at 07:24:01 PM PDT

      [ Parent ]

      •  My nephew refuses a paternity test (0+ / 0-)

        He relies on 'presumption' that he is the father of his son even though his ex-wife insists he is not; he's won custody in Nevada courts so apparently has gotten over that 'hurdle' forever.

        Meanwhile, my other brother the family genealogist has ... shrugged his shoulders and reports the relationship without comment, even though this is one of just two threads in great-grampa's male line (FWIW) ...

        Am I right, or am I right? - The Singing Detective

        by Clem Yeobright on Mon May 21, 2012 at 07:44:13 PM PDT

        [ Parent ]

    •  that does shock the conscience. (1+ / 0-)
      Recommended by:
      Clem Yeobright

      If you think you're too small to be effective, you've never been in the dark with a mosquito.

      by marykk on Mon May 21, 2012 at 07:25:12 PM PDT

      [ Parent ]

    •  Good rationale for it (2+ / 0-)
      Recommended by:
      Clem Yeobright, BachFan

      A lot of this has to do with looking at what's in the best interests of the child.  There are 3 parties in these cases (2 parents, and the children) and the best interests of the different parties don't always coincide.  The children tend to get a higher priority since they aren't adults and are usually bystanders to the dispute.  

      The basic premise for making the father continue to pay child support payments is that it's unfair to the child to suddenly deprive him or her of the person that acted as the  his or her parent and the financial support from that parent.  Basically having someone that you thought was your dad for your entire life suddenly disappear and stop supporting you financially would probably cause psychological trauma.  The courts are trying to minimize this.

      •  I'm certain you are right. (0+ / 0-)

        The courts - and the legislatures - attempt to unravel the messes we mere humans create.

        For 40 years I had thought my brother had effectively resolved difficulties with his step-children's father by renouncing child support in return for renunciation of parental rights until I was recently informed (whisperedly) by my niece-in-law that the fellow still holds me in contempt for his formal 'loss' of parental rights.

        Ain't life grand? 200 years from now, will anybody know?

        Am I right, or am I right? - The Singing Detective

        by Clem Yeobright on Mon May 21, 2012 at 08:17:29 PM PDT

        [ Parent ]

  •  And if the will said something like: (0+ / 0-)

    I want my genetic line to continue, I want my wife to raise my children, but I don't want her to do so while going through the strain of possibly watching me die, and I don't want them to suffer financial hardship that would have been prevented by the return from my lifelong contributions to society had I not tragically died, should that come to pass...


    Because that's exactly what every action the couple took reads as, even if not spelled out.

  •  Ambiguity is always subject to debate. I can see (0+ / 0-)

    that the court is better off putting an issue in a box - then placing it into a forum for open debates. This ruling forces Congress to concur by negative notice (how big is the Lobby for the other side of the coin - anyway?)

    But, on the 14 year old issue, if they come back with 5-4;
    I will be surprised. Would also expect great dissent opinions and concur's - but on "other" reasons why.

    If, however, it bounced to a 5-4 in keeping the status quo. Not only would I be pissed greatly - I would expect even Great dissenting remarks.

    PLEASE Stop Mitt (the Pitts) Romney from stealing the Presidential Election!

    by laserhaas on Mon May 21, 2012 at 08:25:46 PM PDT

  •  As for the Chevron decision. That perverse logic (0+ / 0-)

    is how we wound up with Citizen's United.

    Even our highest courts in the land - should not "legislate from the bench" - in any particular direction.

    Especially when it grants tilted logic results.

    PLEASE Stop Mitt (the Pitts) Romney from stealing the Presidential Election!

    by laserhaas on Mon May 21, 2012 at 08:27:30 PM PDT

  •  More Stealing Our Pensions (0+ / 0-)

    So this man and woman paid into SS their whole working lives, like everyone else. They had a baby as soon as they could after marriage, like most everyone else. They used a medical procedure to conceive, confirming their explicit plans more than most everyone else. The man died unexpectedly and despite their proper action, but their medical procedures contained a contingency plan for conception.

    Therefore, says the Court, his lifetime SS payments do not pay benefits to his surviving children. While the children of people who don't marry, who conceive accidentally, even irresponsibly - they're entitled to survivor benefits. That is wrong.

    The purpose of the survivor benefits in SS is exactly what is served in this case. The conception after his death is purely irrelevant. The Court has just stolen this man's lifetime SS payments he rightly expected to be paid to his children.

    This is just another way the government steals our pensions. It is just another way the modern government undermines the value of, and therefore the insistence on keeping, Social Security. Along the way it proves the "Conservative" self-fulfilling prophecy that anything the government does is "socialism", paving the way to corporate anarchy.

    This government will steal your money your whole life by telling you it's saving it for you and your children. Then it will take your money and spend it on banksters and warmongers right in front of your face. While it sends you and your children to the poorhouse.

    Until we take our government away from the banksters, we will continue to be robbed by them.

    "When the going gets weird, the weird turn pro." - HST

    by DocGonzo on Tue May 22, 2012 at 04:49:39 AM PDT

    •  I agree with the Court here (0+ / 0-)

      As a lawyer and a former SS dependent (my dad had a heart attack when I was 8 years old).

      First, Social Security is dependency and insurance based.  A surviving spouse can get another spouse's benefits, and a dependent child (in utero at time of death or born--most in accord with state law) can get benefits.

      Social Security is also insurance based, and acturial assumptions must be made on who will die/become disabled and when.  It also must be administratable.  You cannot load it up with so many scenarios of future possibilities that it goes off the cliff.

      The sperm or embryo should be treated as any other after-death conceived or adopted child.  Social Security is not your personal IRA or 401(k).  It is not "your pot of money."

      Just like you don't get your auto insurance premiums back or your home insurance premiums back if you don't have an accident or a hurricane/tornado doesn't wipe your home off the map, so the case with the disability and survivor benefits.

      •  Insurance Values (0+ / 0-)

        The purpose of private insurance is profit for the insurer's shareholders, gained by a minimum expense in claims. Social Security's purpose is protecting Americans from poverty, gained by a substantial tax.

        Actuarial predictions of SS expenses are far more impacted by medical breakthrus and Baby Boomer gluts than by IVF post-mortem conceptions. Yet it's a bedrock value among progressives that SS be adjusted to protect people's lives despite those shortcomings in its earlier planning. They can adjust SS to pay for the tiny number of IVF babies conceived in this manner - an actuarial rounding error. Just one of many reasons to raise or eliminate the income cap.

        Why should you have gotten survivor benefits from your father's SS payments? Are IVF children conceived after a parent's death, who were explicitly planned before the parent's death, somehow less needful than you were? Do the parents pay less than yours did?

        Meanwhile this case will now give other greedy parties the argument that IVF babies don't have the same rights as naturally conceived ones. How many wills have to be rewritten to insert "IVF" into otherwise operative sentences, just in case? How many won't, and IVF heirs will get screwed? How many other ways will theocrats find to screw "against god" babies like this? I guess lawyers make more money, so it's OK.

        We have private pensions and life insurance to lawyer beneficiaries out of the benefits the policyholders paid for. We have public pensions and survivor benefits to pay for children to live.

        "When the going gets weird, the weird turn pro." - HST

        by DocGonzo on Tue May 22, 2012 at 08:30:21 PM PDT

        [ Parent ]

        •  Element of choice? (0+ / 0-)

          The dependency protection is part of the SS program. I was here ( 8 years, 9 months) when my father died.

          An after the fact IVF (even from the deceased's or disabled's sperm/egg) is a CHOICE.  Not a conceived or born dependent.  Just something you want to do and didn't do at the time of your death, like so many things you might have done.  No different from an after (death) adopted child, or a later conceived child from a sperm bank, or from another parent, random or not.  The program is not constructed to cover those.  It is meant to provide for the currently conceived/currently born children and current surviving spouse.

          IVF babies are covered by most state laws, just like adopted children, already.  The crux of the problem is "planned for" versus conceived or born.  "Planned for" is not an empirical standard.

          Even though I am a die-hard liberal dem, I don't think you should knowingly have a child you cannot support.  There is an element of personal responsibility and greater responsibility to the child, here.  I also think you should have the complete choice to terminate such any pregnancy.

          Should the survivor of a childless couple receive a dependency benefit if they "planned for" a child but were unable to have one?  Should their family pets who might serve as surrogate children for them receive the funds because they could not have a human child?

          Should any unwed partner (by choice not married yet--not talking about a gay life partner who may be currently unable to wed due to state law) or "engaged" partner also be eligible for survivor benefits?  Where do you stop?

          You have to have rules to administer programs in the real world.  Not make every instance a court case. To make acturial assumptions about premiums, etc.

          And I don't make much money.  You obviously have prejudice against lawyers and don't know what kind of work that I do.

          Having to resort to ad hominem attacks shows the weakness of your argument.

          •  Not In This Case (0+ / 0-)
            [IVF:] Just something you want to do and didn't do at the time of your death, like so many things you might have done.
            The crux of the problem is "planned for" versus conceived or born.  "Planned for" is not an empirical standard.

            In the case before the Court, IVF was not. IVF was part of the medical procedures treating their cancer, like storing blood units before chemo for consumption after it. There is ample empirical evidence the IVF was planned. There was no difference between a planned natural conception and the IVF except for the procedure itself, which enabled postmortem conception that natural conception wouldn't. A difference that makes no difference to the purpose of the SS survivor benefit.

            Besides, SS survivor benefits don't depend on whether a naturally conceived survivor was conceived by plan or by accident. Or by plan just to get survivor benefits: if their cancer were diagnosed terminal and they conceived a child instead of taking chemo, then died the next day, but knowing their wife would have a child and money to support it, SS would just pay without question. Because that's the purpose of SS.

            Should the survivor of a childless couple receive a dependency benefit if they "planned for" a child but were unable to have one?  Should their family pets who might serve as surrogate children for them receive the funds because they could not have a human child?

            No, they shouldn't. Obviously, if there's no child, there's no purpose served in paying for a child survivor benefit. Nor are pets served by that purpose. Do you argue that gay marriage is equivalent to bestiality? Because that's what you just did. Nonsense.

            Should any unwed partner (by choice [...]) or "engaged" partner also be eligible for survivor benefits?

            Probably not. The Court has a better procedure for deciding whether the married status is an unfair burden that conflicts with the SS purpose than I do in a DKos post. But in this case they were married, so again that's totally irrelevant to the case here.

            You have to have rules to administer programs in the real world.  Not make every instance a court case.

            Yes. This, however, is a Supreme Court case. You are arguing other cases that are not, despite having one. One which is how we make rules to administer the real world. In the real world, the purpose of the SS survivor benefit is to protect children of people who paid for SS, as in this case.

            Trying to argue other cases that differ in material fact from the one we're actually arguing about, primarily in their being hypothetical instead of a real family, is an extremely fallacious approach. You're also arguing that this IVF wasn't planned for, which is just false, and that the planning status determines the benefit, which is also false.  Then you get into the fallacies that pets are children and childless is children, which are straw men at best and insultingly absurd at worst.

            Then you veer into your accusation of ad hominem. In fact you started out arguing in your earlier post "as a lawyer", making an argument to authority - another fallacy. I responded that your lawyer status gives you an interest in an outcome like this, because your profession will benefit. That is not an ad hominem attack, because it doesn't say "you're bad so your argument is bad"; it only proposes why you might be wrong, because you have an interest in being wrong. My point there didn't evaluate your argument at all, just you. Whether or not I have a bias against lawyers is neither relevant nor "obvious", only the point I made which you are failing to turn into something else. The classic lawyer copout, BTW - but not by good lawyers.

            But since you insist on making your being a lawyer an issue, I'll address the side issue. Any lawyer whose arguments are built solely on fallacies, mutually known false facts, wrong definitions of fallacies, all in the service of excluding children from the protection SS is designed to give, citing "actuarial limits" that are the responsibility of the actuary to make include the tiny IVF factor... any lawyer like that shouldn't make much money.

            "When the going gets weird, the weird turn pro." - HST

            by DocGonzo on Thu May 24, 2012 at 04:54:43 AM PDT

            [ Parent ]

            •  Not an ascertainable legal standard (0+ / 0-)

              "Planned to do", which you keep saying I did not say, but did, is not an ascertainable legal standard.  

              You appear to want to give full rights to a collection of embryonic cells, so I think you have a not so hidden anti-choice agenda here.  What next, the frozen sperm and eggs have full legal rights too?  But if you are going down that route, I don't think you'd have any problem with that either.

              You arguments, especially against lawyers, are clearly circular.  You have a problem with lawyers and authority and rules, and certainty, and want to do whatever you want whenever you want, or, as I noted, impose your hidden agenda about the personhood of embryonic cells on society.  Methinks you are an anti-choice troll here especially since you went off on the tax aspect of SS in your previous post.

              The fact that I said I was a lawyer was to acknowledge the rationality of this unanimous SC decision -- all justices on the Court ruled the same regardless of ideology or political persuasion.  Even the ardent anti-choice justices ruled that way because they knew to do otherwise would be both illogical and open up an unending can of worms in this instance and others.

              •  You're Not an Ascertainer (0+ / 0-)
                "Planned to do", which you keep saying I did not say, but did, is not an ascertainable legal standard.  

                I didn't say you did not say that. In fact I quoted you saying it:

                The crux of the problem is "planned for" versus conceived or born.  "Planned for" is not an empirical standard.

                and demonstrated that in fact it is an "ascertainable/empirical legal standard". There is ample evidence that was their plan, among the many medical professionals who advised them of the course and the written documentation of it, apart from any personal documents they likely produced for other purposes (emails to their parents, etc).

                You appear to want to give full rights to a collection of embryonic cells, so I think you have a not so hidden anti-choice agenda here.  What next, the frozen sperm and eggs have full legal rights too?

                I have said nothing about any rights that the embryonic cells have. I have said only that the children are entitled to the SS survivor benefits. Those benefits don't pay embryos, only born children.

                You have descended from puerile fallacies into aggressive nonsense. That's why your bringing up your argument from authority fallacy makes criticizing your claimed lawyer status fair game. Because if you are indeed a lawyer, and that's not just something else you made up on the spot like the lies I just called out in this post, you're a terrible lawyer.

                Whether or not I "hate lawyers" is irrelevant to the argument that IVF children conceived so closely to natural conception as the plan to mitigate the risks of a possibly terminal diagnosis fit the same purpose of SS survivor benefits. But since you insist on spending more time self-servingly trumping up such an argument, I'll address it again. I have made no argument against lawyers. I have raised the possibility that your terrible arguments are acceptable to you as a lawyer because lawyers benefit from them. That's an argument against you, not against lawyers. Your inability to distinguish between them is consistent with your other futile attempts at logic.

                Logic like my mentioning the tax aspect of SS somehow makes me "anti-choice". Or that my reasoned arguments to even your ridiculous rhetoric makes me a troll, and not you. You should look it up - "troll" doesn't mean what you think it means. It doesn't mean someone who's rude enough to press their legitimate argument to crush your meaningless yammering.

                I could go on. But you're irredeemable. You can't even read my quotes of your posts, or perhaps stay honest enough to the fact that I did when you try to convince me that I didn't. There's not one iota of value in your posts, or glimmer of hope you're talking to anyone other than yourself.


                "When the going gets weird, the weird turn pro." - HST

                by DocGonzo on Sat May 26, 2012 at 06:28:42 AM PDT

                [ Parent ]

  •  Could add an interesting twist to sperm donation (2+ / 0-)
    Recommended by:
    gagme, WillR

    If this child were allowed to receive SS benefits, than all a sperm donor to do is to write in his will that any child that is conceived by his sperm is entitled to some negligible portion of his estate.  Then after he kicks the bucket, such children would receive benefits.  (I suppose that the only way that this could work is with single mother recipients.)  I could see sperm donor profiles stating, "I have the maximum allowable SS benefits with my children - conceive with me and get $600/mo!"

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